Montoya v. Berryhill

THIS
MATTER comes before the Court on Plaintiff Lorraine
Montoya's Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum (Doc. 16), filed March
10, 2017. Pursuant to 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73(b), the parties have consented to
me serving as the presiding judge and entering final
judgment. Doc.26. Having reviewed the parties'
submissions, the relevant law, and the relevant portions of
the Administrative Record, the Court will grant the Motion.

I.
Introduction

Plaintiff
worked as a registered nurse until, she claims, her physical
and psychological impairments rendered her disabled. In
reaching the opposite conclusion, Administrative Law Judge
Ann Farris ascribed “little weight” to multiple
psychological opinions in the record, effectively rejecting
them. In doing so, however, the ALJ failed to apply the
correct legal standards and her reasoning is not supported by
substantial evidence. Accordingly, the Court will reverse the
ALJ's finding of nondisability, and remand this case for
further proceedings consistent with this opinion.

II.
Procedural History

Plaintiff
filed an application with the Social Security Administration
for disability insurance benefits under Title II of the
Social Security Act on March 22, 2012, with a protective
filing date of March 21, 2012. AR at 154,
171.[1]
Plaintiff alleged a disability onset date of September 15,
2010, the day she stopped working, due to epilepsy/grand mal
seizures, anxiety and depression. AR at 171, 175.
Plaintiff most recently worked as a registered nurse, and, at
the time of her hearing, had returned to work one day a week.
AR at 43, 176.

The
agency denied Plaintiff's claims initially and upon
reconsideration, and she requested a de novo hearing
before an administrative law judge. AR at 70-125.
ALJ Farris held an evidentiary hearing on January 27, 2015,
at which Plaintiff appeared via video conference. AR
at 33-69. The ALJ issued an unfavorable decision on April 8,
2015. AR at 9-32. Plaintiff submitted a Request for
Review of the ALJ's decision to the Appeals Council,
which the Council denied on June 7, 2016. AR at 1-7.
As such, the ALJ's decision became the final decision of
the Commissioner. Doyal v. Barnhart, 331 F.3d 758,
759 (10th Cir. 2003). This Court now has jurisdiction to
review the decision pursuant to 42 U.S.C. § 405(g) and
20 C.F.R. § 422.210(a).

A
claimant seeking disability benefits must establish that she
is unable to engage in “any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner
must use a five-step sequential evaluation process to
determine eligibility for benefits. 20 C.F.R. §
404.1520(a)(4).[2]

At Step
One of the sequential evaluation process, the ALJ found that
Plaintiff has not engaged in substantial gainful activity
since her alleged onset date. AR at 15. At Step Two,
she determined that Plaintiff has the severe impairments of
“epilepsy, obsessive-compulsive disorder,
post-traumatic stress disorder (PTSD), a panic disorder, and
a major depressive disorder[.]” AR at 15. At
Step Three, the ALJ concluded that Plaintiff's
impairments, individually and in combination, do not meet or
medically equal the regulatory “listings.”
AR at 15-17.

When a
plaintiff does not meet a listed impairment, the ALJ must
determine her residual functional capacity
(“RFC”). 20 C.F.R. § 404.1520(e). RFC is a
multidimensional description of the work-related abilities a
plaintiff retains in spite of her medical impairments. 20
C.F.R. § 404.1545(a)(1). “RFC is not the
least an individual can do despite his or her
limitations or restrictions, but the most.”
SSR 96-8p, 1996 WL 374184, at *1. In this case, the ALJ
determined that Plaintiff retains the RFC to

perform a full range of work at all exertional levels but
with the following non-exertional limitations: the claimant
must avoid exposure to hazardous conditions including
unprotected heights, ladders, scaffolds, and dangerous moving
machinery and the claimant is limited to simple, routine
tasks with no production rate pace (i.e., no assembly type
jobs in which the individual must finish job tasks before
someone else can do his or her job), no interaction with the
general public, and only occasional and superficial
interactions with co-workers.

AR at 17.

Employing
this RFC at Steps Four and Five, and relying on the testimony
of a Vocational Expert, the ALJ determined that Plaintiff is
unable to perform her past relevant work as a nurse tech,
licensed practical nurse and registered nurse. AR at
26. However, the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff
can perform despite her limitations. AR at 26-27.
Specifically, the ALJ determined that Plaintiff retains the
functional capacity to work as an addresser in an office
setting, flatwork tier, or a kitchen helper. AR at
27. Accordingly, the ALJ determined that Plaintiff is not
disabled and denied benefits. AR at 28.

III.
Legal Standards

This
Court “review[s] the Commissioner's decision to
determine whether the factual findings are supported by
substantial evidence and whether the correct legal standards
were applied.” Vigil v. Colvin, 805 F.3d 1199,
1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739
F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area
is grounds for remand. Keyes-Zachary v. Astrue, 695
F.3d 1156, 1161 (10th Cir. 2012). “Substantial evidence
is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. . . . A decision is not
based on substantial evidence if it is overwhelmed by other
evidence in the record or if there is a mere scintilla of
evidence supporting it.” Langley v. Barnhart,
373 F.3d 1116, 1118 (10th Cir. 2004) (quoted authority
omitted).

IV.
Analysis

Plaintiff
appeals the ALJ's decision on two grounds. See Doc.
16. First, she argues that the ALJ improperly rejected
the opinions of her treating neurologist, Paul Walsky, M.D.,
that she was unable to work. Id. at 1. Second, she
argues that the ALJ failed to give adequate reasons for
rejecting the opinions of examining psychologists Richard
Madsen, Ph.D., Kathryn Benes, Ph.D., and Esther Davis, Ph.D.
Id.

A)
Treatment of Dr. Walsky's Opinions

Paul
Walsky, M.D. treated Plaintiff for a total of 25 years,
beginning on March 16, 1988. See AR at 455-56.
During the course of Plaintiff's treatment Dr. Walsky
authored three notes, which the ALJ considered as
“medical opinions.” See AR at 19; 20
C.F.R § 404.1527(a)(1) (“Medical opinions are
statements from acceptable medical sources that reflect
judgments about the nature and severity of your
impairment(s)[.]”). These notes opined that Plaintiff
would be off work for varying degrees of time. See
AR at 319, 320, 436. The ALJ addressed these opinions as
follows:

In his September 15, 2011 note, Dr. Walksy opined that the
claimant is off work for three months; she is to return on
December 19, 2011 (Exhibits 3-F, p.8). Dr. Walksy also opined
in his November 23, 2011 note that "due to a medical
condition, " the claimant is unable to work for "an
indefinite period of time" (Exhibit 3-F, p.7). On
February 7, 2012, Dr. Walsky opined that the claimant will
remain out of work for longer than one year, until further
notice (Exhibit 9-F, p.6). I give little weight to Dr.
Walksy's opinions, since they are not consistent with the
record as a whole, including the objective medical evidence
from treating and examining sources, her medical treatment,
and her daily activities.

Plaintiff
argues that the ALJ failed to give good reasons for rejecting
these opinions. Doc. 16 at 16. Relying on Lewis
v. Berryhill, 680 F. App'x (10th Cir. 2017), she
argues that the ALJ failed to apply the correct legal
standards to Dr. Walsky's opinions because the reasons
the ALJ gave were neither legitimate nor specific.
Id. at 18. The Commissioner counters that the
ALJ's reasons were not as vague as those in
Lewis, and so her decision should stand. As further
explained below, the Court agrees with Plaintiff that the
ALJ's first two reasons, that these findings “are
not consistent with the record as a whole, including the
objective medical evidence from treating and examining
sources, [and] her medical treatment” were too vague to
withstand scrutiny. However, even assuming arguendo
that the ALJ erred, the Court finds any error to be harmless
because the ALJ permissibly relied upon the inconsistency of
these opinions with Plaintiff's daily activities.

“[C]ase
law, the applicable regulations, and the Commissioner's
pertinent Social Security Ruling (SSR) all make clear that in
evaluating the medical opinions of a claimant's treating
physician, the ALJ must complete a sequential two-step
inquiry, each step of which is analytically distinct.”
Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir.
2011).

An ALJ must first consider whether the opinion is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques. . . . If the ALJ finds that
the opinion is well-supported, he must then confirm that the
opinion is consistent with other substantial evidence in the
record.

Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014)
(quoting Robinson v. Barnhart, 366 F.3d 1078, 1082
(10th Cir. 2004)). &ldquo;If the opinion is deficient in
either of these respects, it is not to be given controlling
weight.&rdquo; Krauser, 638 F.3d at 1330. However,
“[e]ven if a treating opinion is not given controlling
weight, it is still entitled to deference; at the second step
in the analysis, the ALJ must make clear how much weight the
opinion is being given . . . and give good reasons, tied to
the factors specified in the cited regulations for this
...

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